July '87, 103.

January 13, 1888. Allen et al. v. Krips et al. Judgment de terris-Practice-Scire facias to bind real estate in the hands of the widow and heirs When such proceedings must be instituted-Rule to strike off a judgment— When an affidavit not required.

Proceedings against a widow and heirs must be instituted within ten years from the death of a decedent, in order to charge his lands with the lien of his debts. Where it appears upon the face of the record that a judgment has been improvidently entered, a rule to strike off the same need not be supported by an affidavit.

Error to the Common Pleas No. 1, of Philadelphia County.

This was, in the Court below, a rule to show cause why a certain judgment should not be

stricken off.

The facts of the case were as follows: The plaintiffs, Allen & Knight, lumber dealers, had furnished to the defendant, Henry Krips, prior to 1872, large quantities of lumber. Krips dying suddenly, his wife, Sarah A. W. Krips, took letters of administration upon her husband's estate, and on the first Monday of August, 1877, as such administratrix, was brought into the Court of Common Pleas No. 1, at the suit of the said Allen & Knight upon an alias summons to recover a balance due upon said lumber; and the said cause coming on to be heard before a jury upon the first day of May, 1879, a verdict was rendered therein in favor of the plaintiffs for the sum of $4312.29. On March 23, 1886, judgment was entered upon

this verdict.

Heath v. Page, 12 Wright, 142.

The Court had no power to strike off a judgment regular on its face.

Bredin v. Gilliland, 17 P. F. S. 37.

The only defence to a scire facias to revive a judgment is a denial of its existence or proof of a discharge.

Campbell's Appeal, 20 WEEKLY NOTES, 408. George Junkin (Z. K. Loucks, Jr., with him), for defendants in error.

Under the Act of February 24, 1834, in order
to bind a decedent's real estate, "an action shall
be commenced and duly prosecuted within five
years." To come within this provision, plaintiff
must reduce his claim to judgment against the
of decedent.
widow and heirs within ten years from the death

McMurray v. Hopper, 43 Pa. 472.
Duncan v. Clark, 7 Watts, 224.
Trevor v. Ellenberger, 2 P. & W. 94.
Penn v. Hamilton, 2 Watts, 53.
Maus v. Hummel, 1 Jones, 228.
Kerper v. Hock, 1 Watts, 9.
Loomis App., 29 Pa. 237.
McCurdy's App., 5 W. & S. 397.
Marshall v. Hope, 15 Norris, 39.
Steel v. Henry, 9 Watts, 523.
Payne v. Craft, 7 W. & S. 458.
Phillips v. R. R., 11 Out. 480.
Sample v. Barr, 25 Pa. 457.

The rule to strike off (or, as it is sometimes expressed, to set aside or vacate) judgment is essentially a common law proceeding, a short and summary substitute for an audita querela, a writ On March 29, 1886, the plaintiffs below caused of error, coram vobis, or a certiorari, or writ of to be issued writs of scire facias, directed to Sarah A. W. Krips, widow of Henry Krips, deceased, relief was formerly administered. error from a superior court, by which the same Being for Michael Barrett and Annie Barrett, his wife, for- irregularity apparent on the face of the proceedmerly Annie Krips, and Harry Krips, widow and ings, it is in the nature of a demurrer to the heirs of the said Henry Krips, deceased, command-record, and is not confined to any particular kind ing them to show "if anything they knew or had of judgments, nor limited as to the time it may to say why the said judgment so recovered against be taken advantage of, nor affected by matters the said Sarah A. W. Krips, administratrix of dehors the record, except so far as defendant the said Henry Krips, deceased, should not be levied and paid out of the real estate, of which from making the objection. may have put himself in position to be estopped the said Henry Krips died seised." These writs were all duly and legally served, and so returned by the sheriff, and the said defendants making default, judgment was regularly and duly entered upon said writs for want of an appearance, and the plaintiffs' damages assessed.

Some time after this, the widow and heirs obtained a rule, unsupported by affidavit, to show cause why the judgment against them should not be stricken off. The Court made this rule absolute (see report sub eo nomine, 19 WEEKLY

Mitchell on Motions and Rules, 75, and cases cited. An affidavit of merits is not necessary on motion to set aside a judgment by default irregularly entered.

1 Baldwin's Rep. 462.

February 20, 1888. THE COURT. The only error assigned to this record is the order of the Court below striking off the judgment entered on April 26, 1886, for want of an appearance. The said judgment was entered against the widow and

January 18, 1888.

Rushton v. Lippincott.

heirs of Henry Krips, deceased, upon a scire | July, 87, 159.
facias, to show cause why a certain judgment re-
covered against the administratrix of said Henry
Krips should not be levied and paid out of the Ground-rents-Covenant-Act of February 24,

real estate, of which the said Henry Krips died seised.

The record shows that the scire facias to bring in the widow and heirs was issued over thirteen years after the death of the decedent. As the law now stands in this State in proceedings to charge the real estate of a decedent in the hands of his widow and heirs, the latter must be proceeded against within ten years from the death of such decedent. I will not discuss so plain a proposition, and will refer only to the single case of Hope v. Marshall (96 Pa. 395), where it was said by our late brother MERCUR: "This was the first proceeding instituted against the widow and heirs with a view of charging a lien on the lands which they had acquired from the decedent. It issued more than ten years after the death of the decedent debtor, and the lien of the debt as against their lands was barred by the lapse of time. The learned Judge therefore erred in entering judgment against all the plaintiffs in error. It should have been entered against Hope, the administrator, only.”

1834, section 34-Practice.

An action of covenant sur ground-rent deed is not
within the provision of section 34 of the Act of Febru-
ary 24, 1834 (P. L. 87), requiring that a plaintiff who
intends to charge the real estate of a decedent with
the payment of his debts, should make the widow and
heirs or devisees parties thereto.

against any real estate of the deceased covenantor,
If, however, it is desired to enforce this judgment
other than that out of which the rent issued, notice to
the widow and heirs or devisees would be necessary.

Error to the Common Pleas No. 2, of Phila-
delphia County.

Ejectment, by Willie Rushton against William
A. Lippincott, for a house and lot.

In

On the trial, before MITCHELL, J., the follow-
ing facts appeared: Both parties admitted title
in one John Ketcham, to whom, in the year 1846,
the property in question was conveyed in fee by
one William Steinmetz, reserving to said Stein-
metz a ground-rent of $90.25 per annum.
1856, Ketcham executed a mortgage of the pre-
mises to one Sophia W. Plitt, securing the sum
of $3000, payable in one year with interest, etc.
This mortgage was purchased by plaintiff in
1879, and duly assigned to him. At that time the
premises were unoccupied.

It was urged, however, that the judgment was regularly entered, and that it was error to strike it off upon a rule, unsupported by an affidavit. It is difficult to see of what possible use an affidavit I would have been. All the essential facts appeared of record. The judgment was of course a John Ketcham, the mortgagor, died in the year judgment de terris, and the record showed that the 1878, intestate, leaving a widow and five chilplaintiffs had no right to it. It was unlawfully dren, to whom the premises in question descended, and improvidently entered, and we see no error charged with the payment of the ground-rent and in striking it off. This may always be done subject to the plaintiff's mortgage. One of the where it appears upon the face of the record that daughters of John Ketcham had married William a judgment ought not to have been entered. A. Lippincott, the defendant in this suit. The Thus a judgment entered for want of an affidavit widow and heirs of Ketcham, to whom the title of defence will be stricken off where it appears descended, permitted the ground-rent to fall in that the instrument filed was such as not to re-arrear, and as a result, an action of covenant was quire an affidavit (Post v. Wallace, 16 WEEKLY NOTES, 325; Commonwealth v. Hoffman, 74 Pa. 105). So where the record shows that the judgment was confessed by a feme covert (Dorrance v. Scott, 3 Wharton, 309), or by an infant (Knox v. Flach, 22 Pa. 337). The books are full of similar cases which might be cited were it essen-fourth section of the Act of 1834, the land was tial. We need not pursue the subject further.. Judgment affirmed.

Opinion by PAXSON, J.

GORDON, C. J., and TRUNKEY, J., absent.

W. M. S., Jr.

brought by the owner of the ground-rent to re-
cover three half-yearly payments of the rent.
The writ was brought against one Hewlings C.
Ketcham, administrator of John Ketcham. Judg-
ment was entered for want of an appearance, and
without any scire facias as provided by the thirty-

levied on and condemned under a writ of fieri
facias. A venditioni followed, under which the
premises were sold by the sheriff in April, 1880,
and purchased by W. A. Lippincott, the defen-
dant, whose wife as above stated was a daughter
of John Ketcham. The plaintiff then brought
this action of ejectment.

Plaintiff proved his title as mortgagee and
rested.

Defendant, to show title in himself, offered in evidence the record of the suit before referred to

1

brought to recover arrears of the ground-rent, The natural inference, therefore, is that the and the deed received by him from the sheriff, provisions of the Act of 1834 were intended to and claimed that plaintiff's mortgage had been be as wide as the evil to be cured. And it seems divested by this sheriff's sale. In these proceed- clear to us that by any fair and reasonable interings the property was described simply as a vacant pretation its language must be read as having this lot, and no mention was made of improvements, breadth. The words of the Act are universal, although in point of fact there was a three-story appplying to all actions. The provision as to inbrick house on the property. tent to charge the lands of the decedent must be Plaintiff objected to the admission of defend-read as equivalent to the words used in pari maant's evidence of title, because it did not appear that a scire facias had issued to the widow and heirs, as provided by the thirty-fourth section of the Act of 1834. (Evidence admitted. Exceptions.) The plaintiff requested the Court to charge the jury to find for the plaintiff on the ground that their mortgage could not be divested by a sale at which one of the former owners, who had held subject to the plaintiff's mortgage, had become the purchaser.

It is a well-settled principle that a mortgagor, or one holding subject to a mortgage, cannot acquire and set up against the mortgagee a title

nant sur ground-rent was within the evil sought paramount or hostile to the mortgage.

Warder . Taintor, 4 Watts, 220, and cases cited. heirs of Ketcham.

The cases are all unanimous in holding that a scire facias on a mortgage is not within the Act of 1834. It is submitted that no reason can be assigned why a ground-rent owner should be required to do more than a mortgagor.

It has been expressly decided that it is not
necessary to make the widow or heirs parties.
Longstreth v. Lehmen, 1 Phila. 21.
Gardiner v. Painter, 3 Id. 365.
Williams's Appeal, 47 Pa. St. 307.

There is not a scintilla of fraud or collusion in this case, and therefore Lippincott's title cannot be considered as held in trust for his wife, and thus for the other heirs, who themselves hold in trust for the mortgagor. The expression of this proposition proves its fallacy.

B. F. Fisher and F. Carroll Brewster, for the | ruary, 1834, requiring the widow and heirs or defendant in error. devisees of a decedent to be made parties to a suit against executors. (Chambers v. Carson, 2 Wharton, 365.) The only effect of such omission is that, on the trial of the ejectment, they may make any defence they could have made to the scire facias. (Wallace v. Blair, 1 Grant, 75.) The judgment upon this ground-rent was a judg ment de terris, and the suit was as much a proceeding in rem as is a scire facias upon a mortgage. The administrator could not have been compelled to pay the money out of the personal estate, nor could it have been made out of any real estate other than the particular property upon which it was charged, and out of which the rent issued. It was a restricted charge. It was held in McMurray's Adm'rs v. Hoffer (43 Penn. 468), that "an unconditional revival of a restricted judgment, during defendant's lifetime, makes it a February 20, 1888. THE COURT. This was general lien on all his lands in the county, but an action of ejectment. Upon the trial below the such revival after his death against his personal defendant offered in evidence as part of his title, representatives only, simply continues the lien as the record of a sheriff's sale of the property upon originally restricted. To incumber his other a judgment recovered in an action of covenant real estate with the judgment, as against the upon a ground-rent. The action was brought widow and heirs, proceedings must be had against against the administrator of the original cove-them under the provisions of the 34th section of nantor, and was for the arrears accruing since his the Act of 24th February, 1834." death. It is settled that the personal representatives of the covenantor may be sued for the breaches of the covenant in the ground-rent deed, occurring after his death, but the judgment will be restricted to the land bound by the covenant. (See Gardiner v. Painter, 3 Phila. 365; Quain's Appeal, 22 Penna. 510; Williams's Appeal, 47 Id. 283.) It was urged, however, that the proceedings upon the ground-rent were defective because there was no scire facias to warn the heirs as required by the Act of February 24, 1834. The object of that Act was to give the heirs notice of an attempt to charge a debt of a decedent upon his real estate in their hands, It is conceded that a scire facias upon a mortand it has no application where the testator in his gage is not within the Act of 1834. The reasons lifetime has charged his real estate with the pay- are equally strong for the exemption of a judgment of the debt. In such cases the heirs take ment upon ground-rent from its operation. A the real estate cum onere. It is true that Justice ground-rent is something more than a lien or even THOMPSON did say in McLaughlin v. McCumber a charge; it is an estate, and is bound by the (36 Penna., at page 22) that "the requirement lien of a judgment or mortgage equally with the of the statute of 1834, that in order to charge land. The remedies for its collection are threethe lands of the decedent as against the widow fold, viz: (a) The action of covenant upon the and heirs, they must be made parties to the deed, (b) by distress, and (c) by re-entry. The judgment, is a rule without exception," yet this last two remedies are always in rem; the first is must be understood in connection with the facts so (as in this case) for rent falling due after the involved in that case. There a judgment had been recovered against an executor upon a debt of his testator, and it was sought to charge his real estate with said debt without making his widow and heirs parties. It may be said that, as to all such cases, there is no exception to the rule. A scire facias upon a mortgage is not within the 34th section of the Act of 24th Feb

It is true a judgment against a covenantor in a ground-rent deed is a general, unrestricted judgment, and the money may be made out of any of his property, real or personal, that can be found. So I apprehend a judgment against his executor or administrator for rent which accrued prior to his death, could be collected out of his general assets, real or personal, yet to charge it upon any real estate other than that out of which the rent issued would require notice to the widow and heirs under the Act of 1834, under the principle above cited in McMurray's Adm'rs v. Hoffer.

death of the covenantor. No one, I presume, will contend that where the ground landlord proceeds to collect his rent by distress, or re-entry, that he must make the widow and heirs parties under the Act of 1834. Nor do I see any stronger reason why he should make them parties when he attempts to collect it out of the property itself by execution. He is charging nothing upon the

land of the deceased covenantor; he is merely enforcing a charge placed upon it by the decedent facts appeared: The shipment was made Sephimself in the very inception of his title, which binds it in the hands of his heirs, and runs with the land forever, and in every change of ownership.